Islamic Blog dealing with religious and worldly issues faced by the Muslims.

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Thursday, 31 March 2016

Legislation and Affirmative/ ‘eejabi’ Obligations in Islam

Affirmative/ positive/ ‘eejaabi’ obligations are those
acts which people are directed to perform e.g. Namaz’ rooza’ zakat, hajj etc.
are affirmative/positive obligations. This term affirmative/positive
obligations is used as opposite to negative obligations which are actspeople are forbidden to undertake e.g. all
bad deeds/evils includingall crimes are relating to
negative obligations.

Every obligation (positive or negative) has two
phases- individual phase and collective phase. The difference between
individual and collective deed is that individual deed is compensated
individually whereas a collective deed is compensated collectively. The first stage of every
collective obligation/phase is always individual obligation/phasebut
contribution of every individual is not required in collective deeds.The rise and fall of nations is based on
collective deeds of nations; it is not based on individual deeds (for
details pls see http://secondriseofislam.blogspot.com/2016/02/individual-reformation-vs-collective.html#links
). That is why every nation is allowed by Allah to reform its collective deeds
so that the nation may rise in the comity of nations. For the purpose, Muslims
have been assigned collective obligations and such obligations may be got
complied with through legislation. Because first phase of every collective
deed/obligation is individual deed/obligation (though not all individuals’
deeds/obligations) so Muslims are allowed to reform individuals’
deeds/obligations as well through legislation. In other words, Islamic state
may make legislation to enforce collective and individual obligations whether
such obligations are positive/ eejabi or negative ones; whether such
obligations are relating to crimes or relating to eejabi/positive or negative
ones other than crimes.

It means ‘Qist’ is legal
dispensation of justice in cases of crimes; whereas ‘adl’ is dispensation of
justice through legal and non-legal means in cases of positive/ eejabi or
negative obligations other than crimes.

It is quality of the Quran that
Quran does not specifically mention punishment for each and every crime; Quran
only describes principle through some examples that crimes are to be punished
(through laws). Similarly, in cases of eejabi/positive or negative obligations
other than crimes, Quran only describes principle through an example that
eejabi/positive and negative obligations other than crimes may be enforced
through laws; this example has been given as follows:

“And when the sacred months have passed, then kill the polytheists
wherever you find them and capture them and besiege them and sit in wait for
them at every place of ambush. But if they should repent, establish prayer, and
give zakah, let them [go] on their way. Indeed, Allah is Forgiving and
Merciful” (al-taubah-5).

This verse is stating that polytheists
of Arabia are to be killed wherever they are found but if they repent (means
they accept Islam), establish prayer, and give ‘zakah’, they should not be held
liable to be killed. We know prayer and zakah both are eejabi/positive
obligations. This verse is stating a law specifically about the polytheists of
Arabia but this verse does describe the principle that state may make
legislation for enforcement of positive/eejabi obligations (which are not Arabia's polytheists specific e.g. prayer and zakah) in certain
situations. Though the element of penalty in this law is specific to
polytheists of Arabia, it does not mean state cannot make legislation for
enforcement of eejabi/positive obligations without element of penalty. It is true Quran does not make it mandatory to
make legislation for enforcement of eejabi/positive obligations or negative
obligations other than crimes; if people are motivated enough to fulfill their
eejabi/ positive or negative obligations other than crimes, it is not mandatory
for state to go for legislation for that purpose. But if people start avoiding
implementation of such obligations, taubah-5 does provide the state with option
to enforce such obligations through legislation without element of penalty. In other words, legislation under
process of establishment of ‘adl’ is not mandatory in all situations; ‘adl’ is
to be established through legislation only when it is required to do so.

Actually role of establishment of ‘adl’ is
much more important than the role of ‘qist’ in building a reformed, just, pious
and strong society. Qist is related to only some numbered human activities; but
‘adl’ is related to countless human activities. The scope of ‘adl’ includes all
human activities like human thoughts, emotions, desires, customs, traditions,
moral values, professional ethics, business ethics, legal system, economic
system, political system, social system etc. If system of ‘adl’ is left
unattended and people start ignoring their eejabi/positive and negative
obligations other than crimes, society becomes bound to go for downfall, even
if system of ‘qist’ is fully developed and enforced in the society.

In the early period of rise of
Islam, people were motivated enough to fulfill their eejabi/positive and
negative obligations other than crimes. There was no need to make legislation
for the purpose. Only ‘Qist’ related legislation was in place. But with the
passage of time, people start shunning more and more their eejabi/positive and
negative obligations other than crimes. The result was downfall of Muslims’
society. That downfall might be stopped through making ‘adl’ related
legislation but no heed was paid to it. ‘Qist’ related legislation (crimes
related legislation) was there but could not stop Muslims’ downfall. Now that
we have reached almost the abyss of downfall, we are still ignoring ‘adl’ related
legislation. Because we are not fulfilling, on ourown, our eejabi/positive and negative
obligations other than crimes, there is no chance of our rising again without
adopting ‘adl’ related legislation.

Legislation regarding
eejabi/positive obligations and negative obligations other than crimes may
prove to be panacea of many social evils we are facing with. Legislation may be
made to bind children to pay a certain portion of their income to their unemployed
parents; an industrialist may be made bound to clean the environment where he
has established his factory; husband may be made bound to pay a certain portion
of his pay to his wife and children; the owner of factory establishing his
factory availing special concessions given by the government (e.g. in special
industrial estates) may be made bound to
give away a certain portion of income to the workers; the rich may be made bound
not to display their riches unnecessary; the rich may be made bound to invest
their wealth in productive sectors; the poor may be made bound not to sit idle
and get some kind of employment; the
media may be made bound to promote decency and avoid indecency; the educational
system may be bound to impart Islamic values and way of life; the economic
system may be made bound to serve the poor and reduce disparity between the
poor and the rich through economic policies; the political system may be made
bound to promote and strengthen Islamic Ideology and Islamic institutions. In
short, legislation regarding eejabi/positive obligations and negative
obligations other than crimes is relevant and required for each field of social
life. There is so much room for such legislation in a Muslim society. It need not be reiterated that fulfillment of all these obligations would be ensured through administrative/judicial intervention without awarding any penalty (physical or monetary(fine)). One way of enforcing positive/eejabi obligations (and this method may be applicable in many cases though not in all cases) may be that the defaulter may be prohibited from undertaking the activity, if he fails in fulfilling the obligations attached with such activity. For instance, if an industrialist defaults, the operation of his industry may be stopped ( it should not be taken as monetary penalty; monetary penalty is effectuated by receiving certain amount from the defaulter); similarly if any governmental functionary defaults, he may be removed from his post; if media defaults, its license may be suspended.

We may conclude that adoption of
legislation related to eejabi/positive and negative obligations other than
crimes is a crying need of the time; of course crime related legislation is
also required. Without ‘adl’ related legislation, qist related (crimes related
) legislation cannot put Muslim society back on the track of rising among the
comity of nations.